20 October 2010

The first amendment says what?

I usually try to stay away from the low hanging fruit of the day in and day out political machinations and mud slinging that make up the U.S. electoral system, but I just can't resist Christine O'Donnell's appearance in a radio debate yesterday against her opponent Chris Coons. Here is a video of the event so that you can see for yourself. The fun starts around the 5 minute mark.

There is a lot of talk about the fact that the Constitution does not actually contain the phrase "separation of church and state" and that that is the point that Ms. O'Donnell was making. The fact that that phrase is not in the Constitution is not in dispute by anyone who can read. However, it is clear to me that the idea is embodied within the first amendment despite the absence of the phrase. I think Ms. O'Donnell either had some prepared talking points related to the separation of church and state and she used them at an inopportune time (i.e. the debate didn't correctly line up with what it is she wanted or had prepared to say) or she truly doesn't believe that the government and religion should be separate. The Wall Street Journal blog, linked above, addresses that debate, and I'd rather stay out of it.

I am more interested in a blog entry over on LewRockwell.com about Ms. O'Donnell's remarks. In it, the author derides the "left" for their mocking of Ms. O'Donnel's position saying that the "gaffe" label is applied when someone tells an "unwelcome truth". He then continues:

"Where in the Constitution is separation of church and state?," O’Donnell asks. The answer? It ain’t there. The First Amendment, passed after the Constitution was adopted by a Congress elected under that ratified Constitution, reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The author goes on to note that many religions were "established" in the several states around the time of the Constitution's adoption and that even John Jay supported a New York law prohibiting Catholics from holding office. "In no way does the Constitution or the Bill of Rights establish a 'wall of separation' between church and state," he writes.

The amendment

Are we reading the same words? Let me start by saying that I am not a Constitutional scholar. With that out of the way, I'm willing to concede that the first part of the amendment, quoted above, means that Congress is forbidden from establishing a national religion and not necessarily from passing a law or laws that comport with a particular religious view or views. The second part seems pretty self explanatory to me, and that is that Congress may not pass a law that interferes with a person's practice of their religion, in any way.

So Congress can pass a law (subject to the rest of the Constitution, obviously) that follows or arises from a particular religious view so long as that law does not establish a "national" religion nor interfere with the free exercise of any other religion. The reason I wanted to go down this road is to show that the separation (as contained in the first amendment) is not explicit, but the idea that the federal government cannot impose religion on anyone nor prevent religious freedom is clear.

For the sake of clarity, I would go so far as to say that the federal government is not explicitly barred from supporting a religion (monetarily or otherwise) so long as it does not do so to the exclusion of others. That said, I think that government support of any religion is an extremely unwise policy.

State infringement

I'm not going to do any research into the author's claims about the several states establishing or prohibiting religions. The reason is that the Constitution of the United States did not, at the time, prevent them from doing so. The Constitution, as adopted, only restrained the federal government. The several states were free to violate the people's "rights" as defined by the first 10 amendments to the Constitution to their hearts' content.

It was not until the adoption of the 14th amendment, specifically section 1, in 1868 that this changed. Technically, that isn't even true, as the protections afforded by the 14th amendment (as viewed by most legal scholars) was gutted by the Slaughterhouse cases (this view is in dispute) in 1873. It is only via incorporation that individual amendments to the Constitution have been applied against the states. (The 2nd amendment was just applied this year!) The fact that the states, at the time of the adoption of the Constitution, were interfering with religion has no bearing on whether or not a separation existed at the federal level.